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Citizens for a Better Env't v. EPA

Citation: 11 ELR 20732
No. No. 80-1531, 649 F.2d 522/16 ERC 1623/(7th Cir., 05/26/1981)

The court vacates the Environmental Protection Agency's (EPA's) approval of Illinois' New Source Rules for non-attainment areas contained in the state implementation plan (SIP), but upholds EPA's approval of Illinois Pollution Control Board Rule 203(f), concerning the control of fugitive particulate emissions. The court rules that EPA's approval of the New Source Rules was not "final" action within the meaning of §307(b)(1) of the Clean Air Act because the Rules were never validly adopted under Illinois law. Thus, the court has no jurisdiction under §307 to review challenges to the Rules. However, the court rules that EPA's approval of Rule 203(f) was not arbitrary and capricious. Due to the nature of fugitive particulate emissions, it was reasonable for EPA to approve the use of operating programs which specify control technologies to be used rather than to set specific emission limitations. The court rejects petitioner's argument that Rule 203(f) is unenforceable because (1) it does not set forth specific emission reduction benchmarks and (2) it is not a part of the Illinois SIP and thus is not subject to enforcement actions by either EPA under §113 of the Act or by private citizens under §304. Given the inherent variability in fugitive emission sources it was not arbitrary and capricious for EPA to rely on specific control techniques rather than rigid emission standards. And, even though the Rule is not a part of the SIP, it may be enforced by either EPA, the state, or a citizen because it was formally approved by the Agency. Further, the requirement in §172 of the Act that control measures in non-attainment areas be implemented "as expeditiously as practicable" does not render invalid the December 31, 1982, compliance deadline in Rule 203(f). Since the control programs adopted pursuant to the Rule will take time to implement, and since non-attainment areas need not be brought into attainment until 1982, the approval of the same deadline in Rule 203(f) was not arbitrary or capricious.

Counsel for Petitioner
Robert Yuhnke
Citizens For A Better Environment
59 E. Van Buren St., Suite 1600, Chicago IL 60605
(312) 939-1530

Counsel for Respondent
Eric Smith
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Before SWYGERT, SPRECHER and BAUER, Circuit Judges.